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ASSISTED LIVING ASSOCS. OF MOORESTOWN v. MOORESTOW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


April 9, 1998

ASSISTED LIVING ASSOCIATES OF MOORESTOWN, L.L.C., LAUREL CONSTRUCTION MANAGEMENT, INC., and JOHN and JANE DOE, Plaintiffs,
v.
MOORESTOWN TOWNSHIP, MOORESTOWN TOWNSHIP ZONING BOARD OF ADJUSTMENT, and MOORESTOWN TOWNSHIP PLANNING BOARD, Defendants.

The opinion of the court was delivered by: ORLOFSKY

ORLOFSKY, District Judge:

 Following this Court's grant of a preliminary injunction in this case on March 19, 1998, Defendants, Moorestown Township Zoning Board of Adjustment and Moorestown Township Planning Board, have each moved for reargument pursuant to Rule 7.1(g) of the Local Civil Rules for the District of New Jersey. Moorestown Township has joined in the motion filed by the Planning Board. For the reasons set forth below, the motions will be denied.

 I. Facts and Procedural History

 The facts underlying this action are set forth in great detail in this Court's opinion granting Plaintiffs' motion for a preliminary injunction, Assisted Living Assoc. v. Moorestown Township, 1998 U.S. Dist. LEXIS 3480, F. Supp. , 1998 WL 129956 (D.N.J. Mar. 19, 1998), and will not be repeated here. The Court enjoined enforcement of certain sections of Moorestown Ordinance No. 1806-97 against Plaintiffs.

 On April 2, 1998, ten days after I granted the injunction, see Fed. R. Civ. P. 6(a), Defendants, Moorestown Township Zoning Board of Adjustment (the "Zoning Board") and Moorestown Township Planning Board (the "Planning Board"), filed motions for reargument. *fn1"

 II. Standard on Motion for Reargument

 Motions for reargument are governed by Rule 7.1(g) of the Local Civil Rules for the District of New Jersey, formerly General Rule 12I. Rule 7.1(g) provides that a party may, "within ten days of the entry of an order or judgment," move for reargument. To support reargument, a moving party must show that dispositive factual matters or controlling decisions of law were overlooked by the court in reaching its prior decision. See, e.g., Damiano v. Sony Music Entertainment, Inc., 975 F. Supp. 623, 1996 WL 912174, *10 (D.N.J. 1996).

 The word "overlooked" is the operative term in the Rule. See Allyn Z. Lite, New Jersey Federal Practice Rules 22 (1998 ed.). Mere disagreement with a decision of the district court should normally be raised through the appellate process and is inappropriate on a motion for reargument. See Bermingham v. Sony Corp. of N. Am., Inc., 820 F. Supp. 834, 859 n.8 (D.N.J. 1992), aff'd mem., 37 F.3d 1485 (3d Cir. 1994); G-69 v. Degnan, 748 F. Supp. 274, 275 (D.N.J. 1990) ("A party seeking reconsideration must show more than a disagreement with the Court's decision, and recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party's burden.") (quotation omitted); Florham Park Chevron, Inc. v. Chevron, U.S.A., Inc., 680 F. Supp. 159, 163 (D.N.J. 1988). The Court will only entertain such a motion where the overlooked matters, if considered by the Court, might reasonably have resulted in a different conclusion. See, e.g., Pittston Co. v. Sedgwick James of New York, Inc., 971 F. Supp. 915 (D.N.J. 1997); Panna v. Firstrust Sav. Bank, 760 F. Supp. 432, 435 (D.N.J. 1991); Pelham v. United States, 661 F. Supp. 1063, 1065 (D.N.J. 1987).

 III. Discussion

 In support of its motions for reargument, the Planning Board has raised three factual or legal issues which, it contends, were overlooked by the Court. The Zoning Board raises an additional issue. I address them seriatim, and find all of the arguments advanced by the Planning and Zoning Boards to be without merit.

 A. Lynch Affidavit

 The Planning Board argues that reargument is warranted because I overlooked the opinion of its expert, John J. Lynch. See Certification of John J. Lynch (dated Nov. 20, 1997), Exh. A (Planning Report (dated Nov. 1997)) (hereinafter Lynch Report). I did not overlook his report. I specifically considered the Lynch Report, and cited it in the Opinion. See Assisted Living, 1998 U.S. Dist. LEXIS 3480, 1998 WL 129956 at *2. I did not rely on it for any meaningful factual proposition because the Report was deserving of little weight.

 First, the Lynch Report is articulated in the form of a legal conclusion which Lynch is simply not competent to make. Specifically, the intention of the Lynch Report is:

 

to demonstrate that the Township of Moorestown has made reasonable accommodations for a variety of senior citizen and handicapped housing, including assisted living facilities; [and] that the Township has not discriminated against persons with handicaps or disabilities or those frail elderly in need of the specialized care which can be provided in assisted living facilities.

 Lynch Report at 1 (emphasis added). Lynch also purports to give a legal opinion as to the operation of New Jersey's "time of decision" rule. See Lynch Report at 6; see generally Assisted Living, 1998 U.S. Dist. LEXIS 3480, 1998 WL 129956 at *6 (discussing nature of "time of decision" rule). Finally, Lynch expresses an opinion as to the legal enforceability of certain covenants and easements. See Lynch Report at 5. While Lynch may have vast experience as a professional planner, he is not competent to express a legal opinion as to these specifically legal questions. Accordingly, I accorded the Lynch Report little weight.

 Even if Lynch were competent to give the opinions he set forth in his Report, Local Rule 7.2(a) expressly prohibits the inclusion of legal argument in affidavits. It provides:

 

Affidavits shall be restricted to statements of fact within the personal knowledge of the affiant. Argument of the facts and the law shall not be contained in affidavits. Legal arguments and summations in affidavits will be disregarded by the Court and may subject the affiant to appropriate censure, sanctions or both.

 Local Civ. R. 7.2(a). Accordingly, because Lynch's certification violates Local Rule 7.2(a), I disregarded the legal arguments contained in the Lynch Report.

 Moreover, I found the Lynch Report to be self-serving. It did not address, among other issues, the question of what principled distinction could be drawn between allowing intense uses and sewer service east of Westfield Road for the Laurel Creek and Moorestown Hunt developments, and denying Assisted Living the right to construct its facility on the Garwood-Westfield Roads site. See, e.g., Assisted Living, 1998 U.S. Dist. LEXIS 3480, 1998 WL 129956 at *12, *25.

 Finally, I concluded that the Lynch Report was deserving of little weight because it based its conclusion that Moorestown has acted responsibly towards Plaintiffs by pointing, in part, to accommodations the Township made for other parties, not joined in this litigation. See Lynch Report at 1 (asserting that "Moorestown has made reasonable accommodations for a variety of senior housing and handicapped housing, including assisted living facilities" and that the "Township has made additional reasonable accommodations for the handicapped and frail elderly [sic] by appropriately granting use variances in certain locations"). That argument has already been rejected by this Court. The Township cannot satisfy its obligations to Plaintiffs by accommodating someone other than Plaintiffs. See Assisted Living, 1998 U.S. Dist. LEXIS 3480, 1998 WL 129956 at *17 n.11. For these reasons, inter alia, I gave little, if any, credence to the Lynch Report. While I did not set out in my previous Opinion the reasons why I found the Lynch Report to be of little probative value, I certainly did not overlook it. Accordingly, the motion for reargument will be denied as to the Lynch Report.

 B. Role of the Planning Board

 The Planning Board argues that statements made by members of the Planning Board cannot be used as evidence of "hostility inherent" in Ordinance No. 1806-97 because the Planning Board does not pass legislation. See Brief in Support of Defendant Moorestown Planning Board's Motion for Reargument 5 (dated Apr. 2, 1998). Essentially, the Planning Board argues that the Court overlooked the role of the Planning Board in passing ordinances. This assertion is misguided. Nothing about the role of the Planning Board was overlooked, and the motion for reargument on this basis will be denied.

 At the outset, it should be noted that "the strong possibility that Ordinance No. 1806-97 was motivated in part by a discriminatory purpose . . . is one among several factors " useful in determining whether the requested accommodation is necessary within the meaning of 42 U.S.C. ยง 3604(f)(3). Assisted Living, 1998 U.S. Dist. LEXIS 3480, 1998 WL 129956 at *27 (emphasis added). There were a number of additional factors present in this case which, by themselves and apart from the role of the Planning Board in passing ordinances, made the requested accommodation necessary. For example, I held that the accommodation requested was necessary, in part, to overcome "delaying tactics . . . which various members of the Planning Board indicated would be deployed against Plaintiffs." 1998 U.S. Dist. LEXIS 3480, 1998 WL 129956 at *28. The employment of such tactics is independent of the Planning Board's role in passing ordinances.

 I also found that the accommodation requested was necessary because the Planning Board minutes reflected an intention to relegate Plaintiffs to the peripheral areas of the Township in doling out approvals. Id. at *27. Finally, the accommodation requested was necessary because of Plaintiffs' inability to locate other suitable sites in Moorestown despite substantial efforts to do so. See id. at *28-29. Thus, even if I overlooked the Planning Board's role in passing ordinances -- which, as I explain shortly, I did not -- this would not be dispositive.

 More fundamentally, the role of the Planning Board in passing ordinances was not overlooked at all. As I pointed out in my earlier decision, the Planning Board does play a role in the passage of amendments to local zoning ordinances. See, e.g., Assisted Living, 1998 U.S. Dist. LEXIS 3480, 1998 WL 129956 at *6 (noting role of planning boards in passage of ordinances). In addition, no evidence was presented to show that the Township's motivation in enacting the Ordinance was any different than the Planning Board's. See, e.g., Certification of John T. Terry (dated Nov. 18, 1997), Exh. A (hereinafter Terry Certif.). Finally, it must be noted that the member of the Planning Board who showed perhaps the most hostility towards Plaintiffs, Salvatore Alessi, see Assisted Living, 1998 U.S. Dist. LEXIS 3480, 1998 WL 129956 at *8-9, is also a member of the Township Council which passed Ordinance No. 1806-97 and the Township Council's representative on the Planning Board. See, e.g., Terry Certif., Exh. A; Transcript at 344 (dated Dec. 11 & 17, 1997) (hereinafter Trans.). In short, the role of the Planning Board in passing Ordinance No 1806-97 as reflected in my earlier Opinion is entirely accurate. See, e.g., 1998 U.S. Dist. LEXIS 3480, 1998 WL 129956 at *26-27. Nothing was overlooked in this regard. Therefore, the motion for reargument on this basis will be denied.

 C. Relevance and Immunity

 The Planning Board argues that minutes of the Planning Board meetings, Plaintiffs' Exh. 16-17, should not have been considered because of "legislative or quasi-judicial immunity." Brief in Support of Defendant Moorestown Planning Board's Motion for Reargument 6. This argument is so unfocused that it is difficult to discern exactly what assertion is being advanced. Under the most reasonable reading of the Planning Board's argument, however, it is entirely without merit.

 At the outset, the Planning Board notes that its co-Defendant, the Township, objected to the Court's consideration of the minutes of the Planning Board meetings. The Planning Board, however, rightly characterizes the Township's objection to the introduction and/or consideration of the minutes as "implicit[]." See id. I say "rightly" because it is at best unclear whether there was such an objection either at that time, or ever. See, e.g., Trans. at 347. I allowed the question to which counsel for the Township objected because the minutes of the Planning Board meetings were already in evidence. Id. When Plaintiffs' counsel had originally introduced the minutes in evidence, there was no objection by Defendants' counsel. See Trans. at 36-38. Thus, any objection to their introduction was, at best, "implicit," if not waived.

 The essence of the Planning Board's argument appears to be that the minutes of two Planning Board meetings, Plaintiffs' Exh. 16-17, should not have been "considered . . . under the theories of legislative or quasi-judicial immunity." Brief in Support of Defendant Moorestown Planning Board's Motion for Reargument 6. Unfortunately, the Planning Board has confused the imposition of liability with the consideration of the statements at the meeting as evidence of legislative intent. First, I did not impose liability on the individual members of the Planning Board based on what they said at the meetings. Indeed, they are not even named as Defendants in this action. Additionally, legislative and quasi-judicial immunity protects only individual members of a legislative or quasi-judicial body, not the body itself. See, e.g., Orange Lake Assoc., Inc. v. Kirkpatrick, 21 F.3d 1214, 1223-24 (2d Cir. 1994) (individual members of town board, in absence of planning board, were entitled to legislative immunity in adoption of master zoning plan pursuant to New York law); Bass v. Attardi, 868 F.2d 45 (3d Cir. 1989) (holding that section 1983 suit should not have been dismissed against Planning Board members in official capacities because "suit naming Planning Board members in official capacities in effect makes the Planning Board a defendant" and "Planning Board as a governmental entity has no immunity whatsoever"); Affrunti v. Zwirn, 892 F. Supp. 451 (E.D.N.Y. 1995) (holding that individually-named members of town board were entitled to legislative immunity), aff'd mem, 100 F.3d 943, 1996 WL 53625 (2d Cir. Feb. 8, 1996); Jodeco, Inc. v. Hann, 674 F. Supp. 488, 497-99 (D.N.J. 1987) (finding that planning and zoning boards in New Jersey are quasi-judicial bodies, but were not entitled to any form of immunity from civil damages in section 1983 suit); Meding v. Hurd, 607 F. Supp. 1088, 1110 (D. Del. 1985); see generally Bogan v. Scott-Harris, 140 L. Ed. 2d 79, 118 S. Ct. 966 (1998) (extending legislative immunity to local officials performing legislative functions). Thus, legislative or quasi-judicial immunity is simply not a relevant consideration at this point in this case. *fn2"

 In my prior Opinion, I simply considered statements made at the Planning Board meetings as, inter alia, evidence of the motivation behind the enactment of Ordinance No. 1806-97 and of the treatment of Plaintiffs. The Supreme Court has held that such minutes are precisely the kind of evidence which should be considered when determining whether a statute has been motivated by an impermissible purpose. The Court has noted that "the legislative or administrative history may be highly relevant, especially where there are contemporary statements by members of the [decision-making] body, minutes of its meetings, or reports." Village of Arlington Heights v. Metropolitan Housing Dev't Corp., 429 U.S. 252, 268, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977); see also id. at 267 & n.16 (noting hypothetical situation where entity departed from established procedure in effecting zoning change exemplified by situation where "property involved had been zoned [a certain way] but suddenly was changed . . . when the town learned of [party's] plans to erect integrated housing"). As such, consideration of the minutes of the meetings of municipal bodies as evidence is unremarkable. See, e.g., City of Memphis v. Greene, 451 U.S. 100, 142-43, 67 L. Ed. 2d 769, 101 S. Ct. 1584 (1981) (discussing "Arlington Heights-type evidence"); Phillips v. Borough of Keyport, 107 F.3d 164, 168-70, 178 (3d Cir.) (noting testimony before board of adjustment and role of planning board's recommendation in amending zoning ordinance, considering minutes of town council meeting, and noting "the requirement that there be a factual basis for a legislative judgment presented in court when that judgment is challenged"), cert. denied, 139 L. Ed. 2d 261, 118 S. Ct. 336 (1997); Lakeland Lounge v. City of Jackson, Mississippi, 973 F.2d 1255, 1258-59 (5th Cir. 1992), cert. denied, 507 U.S. 1030, 123 L. Ed. 2d 469, 113 S. Ct. 1845 (1993); id. at 1262 n.12 (Politz, C.J., dissenting); People Who Care v. Rockford Bd of Ed., School Dist. # 205, 851 F. Supp. 905, 931-32 (N.D. Ill. 1994), aff'd in part and rev'd in part on other grounds, 111 F.3d 528 (7th Cir. 1993); United States v. Yonkers Board of Educ., 624 F. Supp. 1276, 1303 (S.D.N.Y. 1985), aff'd, 837 F.2d 1181 (2d Cir. 1987), cert. denied, 486 U.S. 1055, 100 L. Ed. 2d 922, 108 S. Ct. 2821 (1988). Because no liability has been imposed on the individual members of the Planning Board and the minutes of a meeting of a municipal body may properly be considered as evidence, the consideration of the meetings of the Planning Board was not improper, and nothing was overlooked in this regard. Therefore, the motion for reargument on these grounds will be denied. *fn3"

 D. Role of the Zoning Board

 The Zoning Board asserts that I overlooked the fact that Plaintiffs were effectively waiving a challenge to the Zoning Board's interpretation of Moorestown's minimum acreage requirement. This was something which, inter alia, I explicitly said during the preliminary injunction hearing. Accordingly, it was not overlooked and the Zoning Board's motion will be denied.

 In the state court prerogative writs action, Plaintiffs had challenged the Zoning Board's interpretation of the 5-acre minimum acreage requirement, specifically whether certain deed-restricted lands could be used to satisfy that requirement. See, e.g., Assisted Living, 1998 U.S. Dist. LEXIS 3480, 1998 WL 129956 at *5 (noting basis of prerogative writs action). During the preliminary injunction hearing, Plaintiffs stated that they no longer needed to use the 11.2-acre parcel of land which was encumbered by the conservation easement to satisfy the minimum acreage requirement, effectively making moot the challenge to the Zoning Board's interpretation of the minimum acreage requirement. Indeed, there was a relatively lengthy colloquy on this point. See Trans. at 415-18. Reflecting this in my written Opinion, I noted that Plaintiffs had purchased additional land while their initial application was pending and, accordingly, intended to use the 3.55 acres of Lot 1 and 2.05 acres of Lot 2 to meet the minimum acreage requirement. I also noted that Plaintiffs did not propose, inter alia, to use the 11.2 acres encumbered by the equestrian and agricultural easement. See Assisted Living, 1998 U.S. Dist. LEXIS 3480, 1998 WL 129956 at *5. Thus, it is abundantly clear that I did not overlook the fact that the Zoning Board's interpretation of the minimum acreage requirement was no longer at issue in this action. Not only did I say so at the preliminary injunction hearing, I explained in my Opinion why Plaintiffs were no longer challenging the Zoning Board's interpretation of the minimum acreage requirement. Id. Nothing regarding the Zoning Board's role in this action was overlooked by this Court. Therefore, the motion for reargument on this basis will be denied.

 Moreover, the Zoning Board apparently misunderstands why I held that it was properly included within the scope of the injunctive relief granted in this case. I held that the "proper parties to be enjoined are those parties who were, have been, or will be involved in the evaluation, passage, enforcement, and promulgation of the requirements that the proposed assisted living facility be located within an existing sanitary sewer service area, as shown in the Township's approved Wastewater Management Plan and that the proposed assisted living facility connect to the Township sanitary sewer system, and those parties involved in the application of the standards for determining conditional uses in the R-1 zone," 1998 U.S. Dist. LEXIS 3480, 1998 WL 129956 at *31. I further held that those parties are the Township, the Zoning Board, and the Planning Board. Id. This was unquestionably within the Court's broad equitable powers under Rule 65(d), which provides that an injunction may bind "the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order." Fed. R. Civ. P. 65(d). Rule 65(d) applies fully to governmental entities. See, e.g., Thompson v. Freeman, 648 F.2d 1144, 1147-48 (8th Cir. 1991) (finding that injunction should not have included Department of Health and Human Services since it was not in active concert with Missouri Department of Social Services); see also Stolberg v. Members of Bd. of Trustees for State Colleges of State of Conn., 541 F.2d 890, 898 (2d Cir. 1976), cert. denied, 429 U.S. 897, 50 L. Ed. 2d 181, 97 S. Ct. 260 (1976); cf. Spallone v. United States, 493 U.S. 265, 276-77, 107 L. Ed. 2d 644, 110 S. Ct. 625 (1990). The Zoning Board has advanced no reason why it does not fall within the class of entities who may be enjoined. The Zoning Board was a proper party to the injunction, and therefore the Zoning Board's motion for reargument must be denied.

 IV. Conclusion

 For the reasons set forth above, the motions for reargument of the Planning Board, joined by the Township, and of the Zoning Board will be denied. The Court will enter an appropriate order.

 Dated: April 9, 1998

 STEPHEN M. ORLOFSKY

 United States District Judge

 ORDER

 This matter having come before the Court on the motions for reargument filed by Defendants, Moorestown Township Planning Board, Dennis P. Talty, Esq. and Colin B. Scott, Esq., Dennis P. Talty, P.C. appearing, and Moorestown Township Zoning Board of Adjustment, Peter R. Thorndike, Esq., Ryan and Thorndike appearing, Jeremy D. Countess, Esq., and Robert S. Greenbaum, Esq., Peter A. Buchsbaum, Esq., and Robert S. Goldsmith, Esq. Greenbaum, Rowe, Smith, Ravin, Davis & Himmel, L.L.P., appearing on behalf of Defendant, Moorestown Township, and joining in the motion made by Defendant, Moorestown Township Planning Board, and Steven C. Rother, Esq. and A. Alberto Lugo, Esq. appearing on behalf of Plaintiffs, Assisted Living Associates of Moorestown, L.L.C., Laurel Construction Management, Inc., and John and Jane Doe; and

 The Court having considered the submissions of the parties; and,

 For the reasons set forth in an OPINION filed concurrently with this ORDER,

 IT IS HEREBY ORDERED on this 9th day of April, 1998, that the motions for reargument are DENIED.

 STEPHEN M. ORLOFSKY

 United States District Judge


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